NZZ, September 27, 2010. By Claudia Wirz.
Joint custody should become the norm in divorce cases.
Minors are involved in almost half of all divorces. The Federal Council is working on a draft law that would make joint custody the standard.
In a dispute, it's difficult to please everyone. This truism certainly applies to divorces, and especially so when minor children are involved. Then it's not just a matter of settling the affairs of the divorcing spouses, but also of considering the child's best interests. Because children generally don't want their parents to separate, this isn't always easy.
From possibility to rule
Joint custody can be a possible way out of this dilemma. It is based on the premise that shared responsibility for parenthood does not have to end after a divorce, but can continue if the parents are able to communicate with each other. The possibility of joint custody was a key element of the 2000 revision of divorce law.
Since then, parents involved in a divorce can apply for joint custody if they agree. This is the case for a considerable number of children. In 2009, a total of 13,789 minor children were affected by divorce throughout Switzerland. Custody was awarded to the mother in 7,707 cases, to the father in 616, and to both mother and father jointly in 5,432 cases. The differences between the cantons are sometimes quite significant (see chart).
Because a joint application is a prerequisite for granting joint custody, the current regulation can effectively amount to a kind of veto right for one parent – usually the mother. The Federal Council therefore intends to make joint parental custody the norm. The message regarding the corresponding amendment to the Civil Code is expected to be presented this autumn.
The planned change is anything but uncontroversial. It is vehemently opposed, for example, by the Zurich Women's Center. The organization writes that the proposal is based on an idealized image of parental harmony that deviates significantly from reality. It disputes that joint custody can appease quarreling parents. Rather, it expects that if it becomes automatic, it will considerably complicate the life of the primary caregiver, primarily affecting mothers. Furthermore, the idea has by no means been received as positively as the Federal Council claims, says President Irène Meier. The Association of Judges has also expressed criticism. And the Swiss Bar Association has itself issued a passionate plea against it (NZZ, September 2, 2009).
Alexandra Rumo-Jungo, a law professor at the University of Freiburg, has a different perspective. She believes joint custody as the default arrangement is preferable to the current system. She criticizes not only the de facto veto right inherent in the current system; the system of joint applications, she argues, encourages all sorts of "unholy squabbles" between spouses, which is not in the child's best interests. She believes it would be better if custody were not a point of contention in the first place.
Andrea Hauri of the Child Protection Foundation Switzerland criticizes the Federal Council's proposal, arguing that it focuses too heavily on the equality of fathers and mothers while neglecting the child's welfare. The foundation has no fundamental objection to joint custody as the norm, but insists that a child welfare assessment must be conducted in each individual case to determine whether this option is truly best for the child. This includes hearing from the children involved. While children already have the right to be heard, Hauri believes the courts often take this too lightly.
Optimizing instead of winning:
Judge Thomas Hiltpold, from the Thun District Court (District X), has been handling divorces since 1997. He doesn't consider the proposed amendment to the Civil Code essential. Anyone who meets the requirements for joint custody can already have it, he says. The trend is increasing. If the parents' relationship is severely strained, joint custody is out of the question anyway. Hiltpold's experience shows that the formal custody arrangement doesn't play a major role for the children. Children want clear arrangements, lived relationships, and they are also satisfied with a regulated visitation schedule that has been tested during the separation period. The more time passes, Hiltpold says, the less important the legal form of custody becomes. What matters to everyone involved are the details.
Psychologist Heidi Simoni from the Marie Meierhofer Institute for the Child, together with Zurich law professor Andrea Büchler, investigated the impact of legal practice on children, mothers, and fathers. Their findings confirm Hiltpold's experience. A few years after a divorce, the majority of those affected are satisfied with their lives. However, conflicts arise for 75 percent of fathers without custody and for one-third of mothers with joint custody.
Heidi Simoni therefore advocates for a form of custody that is both legally sound and practical for everyday life. She believes it is wrong that a parent can lose custody simply because of a change in marital status – i.e., a divorce. Instead, with the child's welfare in mind, parents should be required to submit a comprehensive agreement to the judge outlining which parent can assume which responsibilities for care and financial security. She argues that children would benefit if the focus in regulating their affairs was less on winning and losing and more on finding practical solutions. Simoni also considers the implementation of children's rights to participation to be crucial.